Before Plager, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
Dennis McKenna appeals the final decision of an arbitrator approving his removal from employment by the Immigration and Naturalization Service ("INS" or "agency"). The arbitrator determined that INS had established misconduct on Mr. McKenna's part, that Mr. McKenna had failed to prove any affirmative defenses, and that removal was a reasonable penalty for the misconduct. We affirm-in-part, reverse-in-part, vacate-in-part, and remand.
Mr. McKenna began work with INS on July 18, 1991 as a Detention Enforcement Officer. On October 13, 1995, he was removed from his position based upon several charges, including falsifying documents and failing to pay just debts. The falsification charges stemmed from responses Mr. McKenna made on several employment forms: (1) the Standard Form ("SF") 171 he completed in 1989, where he failed to reveal that he was delinquent in paying federal income taxes; (2) the SF 86 he completed in 1991, where he failed to reveal a 1979 felony charge; and (3) the SF 86 he completed in 1992, where he again failed to reveal the 1979 felony charge. The debt charges stemmed from Mr. McKenna's failure to pay federal income taxes and child support. Mr. McKenna sought arbitration of his removal, and arbitration hearings were held in November of 1997.
Before the arbitrator, Mr. McKenna denied that he intentionally falsified any documents. He asserted that when he completed the SF 171 in 1989, he was not aware that he owed taxes. With respect to the felony charge, Mr. McKenna's principal argument was that he was not aware that he was obligated to reveal that charge because it had been dismissed and sealed and was a "nullity" under New York law. Mr. McKenna also pointed out that he disclosed the charge to INS when, in 1991, he provided a Certificate of Disposition from the court showing that the charge had been dismissed and sealed. As far as the unpaid debts were concerned, Mr. McKenna explained that some obligations were disputed and that he was making a good faith effort to satisfy others.
In addition to denying the misconduct charges, Mr. McKenna raised an affirmative defense under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (1994). Specifically, he claimed that his disclosure of a drug problem at the INS facility where he worked antagonized personnel involved in his removal. Mr. McKenna argued that his whistleblowing activities were a factor in his removal, and asserted that a similarly situated employee (an INS Inspector) who was not a whistleblower had concealed a prior arrest but was not subject to disciplinary action.
The arbitrator found Mr. McKenna's assertion that he was not aware in 1989 that he owed taxes implausible. Accordingly, he upheld the charge that Mr. McKenna falsified the 1989 SF 171.
The arbitrator determined that Mr. McKenna's failure to disclose his felony charge on the 1991 and 1992 SF 86's constituted falsification because the New York state law sealing the records did not apply to the federal government. He further determined that Mr. McKenna's falsification of the 1991 SF 86 was intentional, disbelieving Mr. McKenna's claims that he thought that he did not have to disclose the charge because it had been expunged, that he had been told that he did not have to disclose the charge, that he was not aware that the charge was a felony, and that he was confused by the question on the SF 86. The arbitrator also rejected Mr. McKenna's argument that, in providing INS with a Certificate of Disposition for the felony charge, he demonstrated that he did not intend to deceive the agency. The arbitrator concluded that Mr. McKenna only provided the Certificate in response to an INS request, and he noted that the Certificate did not state that the charge at issue was a felony. *fn1 The arbitrator reached a similar Conclusion about the falsification of the 1992 SF 86, noting additionally that he did not believe Mr. McKenna's claim that he was not aware that he actually had been "charged" with a felony. *fn2 Thus, the arbitrator upheld the determination that Mr. McKenna had falsified the 1991 and 1992 SF 86's.
The arbitrator agreed with INS that Mr. McKenna had failed to honor just debts, finding that the evidence established that he owed both child support and federal income taxes at the time of his removal.
With regard to Mr. McKenna's affirmative defense, the arbitrator determined that Mr. McKenna had made out a prima facie case of improper removal under the Whistleblower Protection Act. He found, however, that INS had established by clear and convincing evidence that Mr. McKenna would have been removed in the absence of his whistleblowing activities. Accordingly, he concluded that Mr. McKenna's removal was not barred by the Whistleblower Protection Act.
Finally, the arbitrator reviewed the penalty of removal and found that Mr. McKenna's falsification of three ...